Chapter VII. The Practical Side Of Noerr-Pennington

The Noerr-Pennington doctrine presents fascinating theoretical
issues regarding the intersection of the Sherman Act and the First
Amendment, and the development of a doctrine that has to balance
sometimes competing values. There is a practical side to Noerr, too, and
this chapter addresses how the Noerr-Pennington doctrine applies in
litigation and counseling situations.
A. Defense or Immunity and Does It Matter
In a litigation where Noerr-Pennington is an issue, one preliminary
issue to be considered is whether the Noerr doctrine is a true immunity,
or whether it is an affirmative defense. In general, an immunity is law-
based and designed to provide protection from suit, while an affirmative
defense is fact-based and designed to protect a party from damages.
a practical matter, a party waives an affirmative defense if it is not
included in the answer or first responsive pleading; an immunity is never
The majority of courts that have considered whether the Noerr-
Pennington doctrine is an immunity or a defense have concluded that
Noerr is an affirmative defense.
For example, in North Carolina
1. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 131, at
1032 (5th ed. 1984).
2. See, e.g., N.C. Elec. Membership Corp. v. Carolina Power & Light, 666
F.2d 50, 52 (4th Cir. 1981); We, Inc. v. City of Phila., 174 F.3d 322, 326
(3d Cir. 1999); Segni v. Commercial Office of Spain, 816 F.2d 344, 345-
46 (7th Cir. 1987); Acoustic Sys. v. Wen ger Corp., 207 F.3d 287 (5th Cir.
2000); Bayou Fleet, Inc. v. Alexander, 234 F.3d 852, 860 (5th Cir. 2000 );
IGEN Int’l v. Roche Diagnostics, 335 F.3d 303 ( 4th Cir. 2003).

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